Commenter Mike Sylwester explains sundance's theory pretty well. Here's Mike's statement of the facts as I understand sundance to be presenting them. I'll add a bit more:
It seems that Senator Mark Warner told James Wolfe to leak the Page FISA warrant to the New York Times. Wolfe (and Warner) were caught by the FBI, but then DOJ/FBI covered up the crime. Wolfe was not charged for leaking the top-secret FISA warrant. Rather, he was charged only for lying to the FBI.
Exactly who made the decision to reduce the charge against Wolfe from leaking to merely lying? Who approved that decision? What was the justification?
There are three additional contentions that sundance is making in connection with the Wolfe case, and they all suffer from the same problem.
First, sundance also maintains that DoJ/FBI have an official position that the Page FISA wasn't leaked by Wolfe. To support that he cites the Wolfe sentencing memo:
The very obvious problem with this--as Shipwreckedcrew is quick to point out--is that the FBI (and DoJ) are NOT saying they don't believe Wolfe did the leak. They're only saying, in effect, that they don't have the evidence to prove that beyond a reasonable doubt. I happen to believe that sundance is right, that Wolfe did the leak. The circumstantial evidence is very strong. And although I'm not a betting person, I would happily bet that every single FBI agent who worked that case also believes Wolfe did it. The problem is the lack of physical evidence--destroyed by Wolfe. Here's SWC's explanation:
The point made by the gov't is that it cannot show that Wolfe did disclose classified information because the forensic analysis did not uncover what it was that Wolfe sent Watkins.
[The passage from the Sentencing Memo] comes no where close to a definitive statement that Wolfe did not leak the FISA warrant. It only says the gov't can't make that claim at sentencing because it doesn't have proof of what those 82 pages were.
Proof. That's part of the rule of law--a crucial part that sundance just doesn't seem to get. If it were as easy as sitting down at a computer and compiling stuff from internet sites, there'd be no point to 3 years of law school and a grueling Bar exam, plus additional years of training and experience. We don't want--or I don't want--a country where the standard of proof for a crime falls short of proof beyond a reasonable doubt. It can be very frustrating. All investigators and prosecutors experience this, usually at a less consequential level: you're sure from the circumstances that you know what happened and who's responsible, but you lack proof beyond a reasonable doubt. And DoJ policy--sometimes honored in the breach--is that no charges should be brought on the hope that a jury can be convinced to convict on a lesser standard of proof. Again, that's about the rule of law, rather than what we can talk people into.
The next two points are at least implicit in this concluding passage from CTH:
... none of the more illegal activity is based on political lies; and all of issues point to a direct national security threat, including the overarching possibility of blackmail against those who are currently charged with intelligence oversight. Lastly, all of the events to cover-up the Wolfe leak involve direct criminal conduct.
Let's take the second point first. As I understand this, sundance is maintaining that everyone with knowledge of Wolfe's leak--and sundance presumes that that "everyone" includes most of the senators on the SSCI--is now subject to blackmail due to their guilty knowledge and complicity in the coverup. This, I take it, is what sundance means by "a direct national security threat, including the overarching possibility of blackmail against those who are currently charged with intelligence oversight."
Just as I accept the moral certitude that sundance is right about Wolfe, I also accept that most of the senators on the committee are complicit in this. Nevertheless, even the claim of a national security threat can't obviate the need for actual proof. I will also state my personal opinion that the "overarching possibility of blackmail" is overdrawn: if the FBI was unable to obtain the physical evidence, then I doubt that anyone else will. That's not blowing this off. If there's a way to reopen the case and obtain the evidence, I'm all for it. I'm just saying this based on what we actually know.
The final point has to do with sundance's references to "politics" as opposed to "criminality." This is his slam against AG Barr. What he's saying is that Barr's refusal to "criminalize politics" actually means that Barr is part of the coverup. Barr, he's saying, has labeled clear criminal leaks as "politics" and is refusing to act. In other words, he's saying that Barr is a criminal, too--I can think of no other way to understand this.
Once again, however, sundance stumbles over the issue of proof beyond a reasonable doubt as inherent in our American concept of rule of law. It's simply illogical to claim that a refusal to criminalize politics is a refusal to prosecute politicians. The two ideas are readily distinguishable. Sundance is blinded by his conviction of Wolfe's guilt--which most honest people can accept--to the degree that he's unable to separate that from the issue of proof. And so anyone in authority who points out those difficulties must be part of a criminal conspiracy. It's not logical, and in the circumstances it's unfair to Barr--who has shown a willingness to accept any amount of political heat in his dedication to reestablishing rule of law. Ask Michael Flynn or Roger Stone, for starters. Next to President Trump, Bill Barr is the most reviled man in America, and it's all about his steadfast adherence to traditional standards for the administration of the criminal justice system.
All fairminded people will acknowledge that sundance has performed important services. I have no problem with that. I take truth where I can find it, and I often take it from people with whom I don't entirely agree. But sundance is off the rails in his accusations against Barr and Durham, and to that extent has become part of the problem we face.
UPDATE 1: Two comments (below) raise important issues that I think I should address here, rather than in the comments section.
DOJ has Ali Watkins' evidence which may include the 82 pages unless Watkins was warned to destroy such evidence. The DOJ has been reluctant to pursue criminal activity by the 'press' for decades over 1st Amendment issues; the DOJ needs to get over that nonsense.
1. Actually, we don't know that DoJ has that evidence, do we? Do we know that they got a search warrant for her communications?
2. As for "getting over" "First Amendment nonsense" involving the press, in fairness that's not so much a DoJ issue as a SCOTUS issue. I happen to agree--and recently said so--that it's high time that the SCOTUS got over that nonsense. However, these actually are complicated issues. Do we really want to protect government secrecy to the extent that the government would like?
I could be wrong, but I assumed the "blackmail" angle on Senators was that Wolfe could expose PRIOR wrongdoing by Senators -- specifically that Senators on the Committee asked him to leak classified material to the media on various occasions, possibly including the CP FISA application, and that potential for blackmail for that was the impetus for SSCI Senators to intervene behind the scenes with DOJ to get Wolfe a plea deal to a lesser charge than leaking classified material.
But you could be right. On the other hand, I confined myself to the Page FISA angle for blackmail because sundance always emphasize "criminality"--not just wrongdoing, which we more or less take for granted in our legislators.
In my response to Mike Sylwester's comment (below) I get into the plea to a lesser charge. It's complicated. I do agree, as I said, that I am morally certain as to the general outline of what happened. If Barr can find a way to address this, I'd be far happier. However, for our purposes here, I want to play Devil's Advocate to some extent because sundance, IMO, goes beyond what the circumstantial evidence will actually support when I starts talking about Barr and Durham--which he does obsessively.
UPDATE 2: Since several commenters didn't read all my comments below, I'll rewrite my comment and use it as an update.
SWC did a tweet that illustrates why you need to be careful when sundance starts drawing legal conclusions about things he doesn't understand. I've rewritten SWC's tweet to greatly expand it and make it all more explicit:
SSA Dugan's affidavit--in which he maintained that Wolfe had leaked the Page FISA--was submitted for Wolfe's sentencing. As such, it was submitted as part of the sentencing package that DoJ approved. At sentencing DoJ was arguing for facts--the leak of the FISA--that would support a longer sentence as an 'enhancement'. The standard of proof for an enhanced sentence is 'preponderance of the evidence', NOT 'beyond a reasonable doubt.' Beyond a reasonable doubt is the standard for a guilty verdict at a trial, but preponderance is a MUCH lower standard. So, DoJ was arguing in its sentencing memo that the Court should conclude that--while Wolfe had not pled to the leak and the government had not proved it beyond a reasonable doubt--nevertheless the preponderance of the evidence supported such a conclusion. THEREFORE, Wolfe should receive a stiffer sentence for the false statement than he would ordinarily receive under the sentencing guidelines.
That actually works very much against sundance. IF this was a big coverup, DoJ would not have allowed that affidavit to be part of their sentencing recommendation--the prosecutor controls that, not the agent. The fact, therefore, that DoJ was willing to argue to the judge that the judge should conclude for sentencing purposes that the false statement plea related to a leak of the FISA (which, however, was never proved nor pled to) argues to the basic good faith of DoJ = not a coverup.
I highly recommend you follow SWC's continuing twitter war with sundance if you want to understand all this.
DOJ has Ali Watkins' evidence which may include the 82 pages unless Watkins was warned to destroy such evidence. The DOJ has been reluctant to pursue criminal activity by the 'press' for decades over 1st Amendment issues; the DOJ needs to get over that nonsense.ReplyDelete
I could be wrong, but I assumed the "blackmail" angle on Senators was that Wolfe could expose PRIOR wrongdoing by Senators -- specifically that Senators on the Committee asked him to leak classified material to the media on various occasions, possibly including the CP FISA application, and that potential for blackmail for that was the impetus for SSCI Senators to intervene behind the scenes with DOJ to get Wolfe a plea deal to a lesser charge than leaking classified material.ReplyDelete
The circumstantial evidence -- the 82 images that Wolfe texted right after he received the 82-page FISA warrant -- is so strong, that Wolfe would have been convicted.ReplyDelete
The overwhelming circumstantial evidence is the reason why the non-prosecution for leaking seems to be corrupt.
I certainly agree that the circumstantial evidence is wrong. However, I'm not sure we can say that it's proof beyond a reasonable doubt--or, perhaps more to the point, that only a corrrupt prosecutor would take a plea to a lesser offense in the circumstances. There are a variety of counter balancing arguments here. Normally a prosecutor should charge the most serious offense, but when there are differing levels of evidence, things get more complicated.Delete
I spoke above of moral certainty and I won't back off that. Because, like you, I do regard the evidence as very strong. However, this happened before Barr came on board. Barr's hands are probably tied by the plea agreement and, to the extent that they may not be, sundance has ZERO clue what Barr's thinking on this is.
Back to moral certitude. Again, with the caveats above, moral certitude does equate to proof beyond a reasonable doubt. Am I right or wrong in claiming a moral certitude? Here is a passage from a standard jury instruction:
"A charge is proved beyond a reasonable doubt if, after you have compared and considered all of the evidence, you have in your minds an abiding conviction, to a moral certainty, that the charge is true. When we refer to moral certainty, we mean the highest degree of certainty possible in matters relating to human affairs -- based solely on the evidence that has been put before you in this case."
Woops! "I certainly agree that the circumstantial evidence is STRONG."Delete
"The overwhelming circumstantial evidence is the reason why the non-prosecution for leaking seems to be corrupt."
In some simpler, parallel universe why would you prosecute somebody for a false statement about something you didn't believe he did?
IOW, if Wolfe didn't text a copy of the FISA to Watkins, why waste your time on yet another 'false statement' case?
If DOJ was really trying to root out Deep State corruption why not charge Wolfe with leaking and false statement and go to trial? And call Mark Warner to testify...
Donning my tin foil hat...ReplyDelete
The evidence was available, the bigger issue is wanting to put the needed effort to produce it. Just like Weiners laptop, hillarys emails, and Lois Lerner’s emails are examples where evidence was available, but deliberately ignored.
Places to get evidence:
1. Everything sent In the us via your phone including voice, texts, and emails is captured put into the NSA Utah center database, Including images sent via texting.
2. Backups include this information, and if the cloud is used, backups get backed up.
3. It’s really hard to Truly erase a phones data. Destroying with a hammer works, as was done to hillarys blackberry. There were two phones involved. Erased Data can be recovered, it’s just not cheap. I believe one of the phones was an iPhone.
My guess is it’s to late now, since an agreement was reached to go after Wolfe. And with Wolfe’s detente / MAD (mutually assured destruction) agreement with the Senate Intel Committee, I doubt for career survival there is much interest in reopening this in the DOJ. It could be seen as political retribution. My guess there are lower hanging fruits that are being targeted.
Yes, all that data is captured, but it's not routinely available for criminal cases. The justification for capturing everything is anti-terror with a nexus outside the US. That's what the big flap about 702 is about. I can't tell you what would be necessary to recover that for use in a criminal case against a US person.Delete
"Everything sent in the US via your phone including voice, texts, and emails is captured put into the NSA Utah center database, including images sent via texting."Delete
Dale, feel free to expand. We like information here.Delete
Just a reminder, AG Lynch put a "stop" order on any FBI review of Weiner's laptop and communicated through Clinton's aides about this. It's documented. Plus the whole "matter" deal with Lynch and Comey re: Hillary's was all a ruse. All DS stuff.Delete
It's not excessively difficult to evade NSA interception using certain available software and technologies. However, the weakest link, as always, is usually human. But in general, failing evasion, interception can be mitigated with adequate encryption (as in uncrackable by NSA—yes, there is such a thing) rendering the content of a communication unreadable without both the decryption key and password.
As for muddying the meta, that can be slightly more arduous, but not too much.
Although Sundance doesn't make it easy to follow his point sometimes, I think I at least understand what he is suggesting.ReplyDelete
In the Fox News article from December 20, 2018 posted previously there are some conflicting opinions cited as to whether DOJ/FBI has evidence Wolfe leaked the FISA warrant.
Quote A from the Fox article: "'The FBI did not uncover evidence that [Wolfe] himself disclosed classified national security information,' the DOJ wrote in a court filing last week. The filing also openly discussed what was dubbed the difficult 'separation of powers issue' at play as the executive branch agency investigates the Senate."
Quote B from the Fox article: "In an affidavit attached to Friday's filing, the FBI special agent overseeing the Wolfe investigation noted that there had been a 'known disclosure of classified information -- the FISA application,' apparently referring to the government's highly secret application to surveil former Trump campaign aide Carter Page."
From Sundance's Discussion With...William Aldenberg article the following three excerpts are salient:
A. "On December 14, 2018, WFO Special Agent Brian Dugan filed an attachment, Government Exhibit 13, to the final sentencing recommendation – and in that two page sworn statement, under penalty of perjury, SSA Brian Dugan attested to Wolfe leaking the FISA application for the final time."
B. "...I reminded Mr. Aldenberg that SSA Brian Dugan was still employed at the FBI Washington Field Office and it should be a very simple conversation to confirm."
C. "7. Govt. Reply to Defendant (Wolfe) sentencing memo (date Dec 14, 2018) Govt. Exhibit #13 (two page attestation is critical)."
That third excerpt is the Dugan affidavit (Sundance's Citation #7), but he does not provide a link to it or share it. I think Sundance is suggesting he has been in touch with Brian Dugan, perhaps, and at least was persuaded he has evidence of a coverup by Special Counsel/DOJ/SSCI.
I think that's it in a nutshell. Sundance believes Dugan over the official DOJ party line and it seems he is suggesting Aldenberg can visit with him at Washington Field Office if he wants to take the time to do so.
And as SWC has pointed out, the evidentiary standard for Sentencing Recommendations is "preponderance," not beyond "reasonable doubt."Delete
IOW, the preponderance of circumstantial evidence indicates Wolfe leaked the FISA application, but it arguably is insufficient to reach the "beyond reasonable doubt" standard needed at trial to obtain a conviction.
But here's SWC's response to that, and it illustrates why you need to be careful when sundance starts drawing legal conclusions about things he doesn't understand:Delete
"That's at sentencing [Dugan's statements about the FISA being leaked]. They are arguing [at sentencing] for facts that would support a longer sentence as an enhancement. The standard of proof [at sentencing] is "preponderance of the evidence", not "beyond a reasonable doubt." [preponderance is a MUCH lower standard.] Gov't was arguing that Court should conclude it was FISA application."
That actually works very much against sundance. If this was a big coverup, DoJ would not have allowed that affidavit to be part of their sentencing recommendation--the prosecutor controls that, not the agent. The fact, therefore, that DoJ was willing to argue to the judge that the judge should conclude for sentencing purposes that the false statement plea related to a leak of the FISA (which, however, was never proved nor pled to) argues to the basic good faith of DoJ = not a coverup.
EZ, our comments crossed paths.Delete
Again--the fact that DoJ made that argument at sentencing is a pretty strong evidence against corruption on DoJ's part.Delete
Just to be certain. Wolfe's sentencing was done BEFORE Barr was AG. DOJ was Rosenstein's then. I humbly submit you guys are asking me for a lot of faith here. I faith in things above, but not in the pre-Barr DOJ since 2008. :-)Delete
>> EZ, our comments crossed paths. <<
Like two ships, passing in the night, oblivious to each other's existence ....
Not sure what people are suggesting regarding Barr's handling of "political" issues. Here's my take - Barr doesn't want to be used by anyone to achieve their political ends. This would explain Durham's investigator asking Sundance if any of his information was provided (tainted) by any source on "the Hill".ReplyDelete
It's much more than just political taint; it's -- as SWC has pointed out -- a "Fruit of the Tainted Tree" problem.Delete
If some Cong. investigator got a bit too enthusiastic, and illegally collected evidence, or induced a private citizen to do it, it can't be legally used in a prosecution. Moreover, everything downstream of the illegally obtained "fruit" is also forbidden, and must be excluded from trial.
Taking evidence collected under circumstances not controlled by Durham's investigation risks inadvertently introducing "forbidden fruit" that will give defense attorneys a field day in suppressing evidence at trial.
Durham can't risk it; in fact, I'm flabberghasted his investigator would talk to an idiot like Sundance. Since he has, AFAIK, no claim to first hand evidence, there is no upside to Durham's team listening to him, and there is a very real downside if some of his evidence came from Congressional Investigators if they broke 4th Amendment restrictions on how it was obtained.
Durham risks infecting his evidence with "forbidden fruit" by talking to anyone with anything other than first hand evidence, because he can't be sure it was obtained legally.
Mark and EZ, so are you guys are arguing in favor of DOJ's USA for DC (at that time) Jesse Liu here, right? And her integrity? "DOJ" is a pretty big place. Jesse Liu was "DOJ" and was not a "big place." And as many suggest, Rosenstein's DOJ was co-opted by Special Counsel. And by Rosenstein's very own testimony to Senate Judiciary last month, he deferred to Team Mueller on some vitally important matters (scope memos come to mind).ReplyDelete
I'm at a bit of a disadvantage, because I don't know where SWC is making his case (a new article at RS or on Twitter).
Mark - the point about sentencing not being the place for a guilt determination seems valid. But then why was the sworn affidavit submitted at all then?
Personally, I would LOVE to see the affidavit. If it's Jesse Liu's office you are putting your faith in, I can't make the leap.
"But then why was the sworn affidavit submitted at all then?"ReplyDelete
Exactly. IF it was a corrupt deal and sundance is right that DoJ argued there was no leak, THEN why did DoJ submit a sentencing memo arguing--for sentencing purposes--that there WAS a leak? Maybe you need to rethink sundance's trustworthiness and legal knowledge.
S of C B wrote:ReplyDelete
>> Mark and EZ, so are you guys are arguing in favor of DOJ's USA for DC (at that time) Jesse Liu here, right? And her integrity? "DOJ" is a pretty big place. Jesse Liu was "DOJ" and was not a "big place." And as many suggest, Rosenstein's DOJ was co-opted by Special Counsel. And by Rosenstein's very own testimony to Senate Judiciary last month, he deferred to Team Mueller on some vitally important matters (scope memos come to mind). <<
I have no idea what you are talking about. I haven't referred to Jessie Liu in any of my comments on this thread.
Please read my latest update.ReplyDelete
Thanks for your patience with me, Mark! Sincerely so. More than anything, I just want the damned truth to come out, and for our Constitutional republic to be strengthened in the process. God be with you, and thanks again for patiently listening -- and teaching!Delete
"But then why was the sworn affidavit submitted at all then"ReplyDelete
Ok, now I get to play Devil's Advocate in Sundance's defense:
It was submitted so that no one (most especially the SSA Dugan) could accuse Liu and Rosenstein of covering up preponderant evidence that Wolfe leaked the FISA to Watkins, but this does not exonerate them of corruption because Wolfe still wasn't facing the much harsher sentences available for espionage.
Think about this way- you have a guy who hijacked a semi full of hydroxychloroquine. You know he did it because you found the empty truck in his salvage yard with his fingerprints all over it. Now, he claims he found the truck abandoned and towed it to the yard hoping to get a reward for finding the truck, but he disavows any knowledge of the the HCQ cargo. You know that first day that he has a large storage unit in the next town over, but you can't get your superiors to go get a warrant until 6 months later while he has been out on bond. When you finally do get the warrant, you find traces of HCQ, but the bulk cargo is long gone. Your superiors in the DA's office offer the criminal a deal in which he pleads to guilty a misdemeanor charge of illegal towing. You are pissed off that the DA sat on the damned warrant for the storage unit for 6 months and threaten to go whistleblower status, so the DA agrees to allow you to submit the new evidence to enhance the sentence for illegal towing from 1 month in jail to the maximum of 2 months in jail.
I can't escape the feeling that the investigation into Wolfe's leak was half-assed and -hearted precisely because it would likely involved sitting Senators and would involve undercutting the Mueller narrative that most of the DoJ supported whole-heartedly. I think beyond reasonable doubt evidence was very findable, but that the investigators either didn't try very hard to find it, or were ordered to look everywhere else that it wasn't. It has gotten almost impossible to be too cynical these days.
I did actually consider that possibility, but I discounted it on the grounds that it would be not much of a coverup. In fact, it points a finger directly at the senators.Delete
That's my point- it couldn't be covered up, and it was far better for Rosenstein and Liu to "uncover" it the way they did- it didn't affect Wolfe at all, nor did it affect the case, but it kept any investigators who disagreed with the DoJ's decision from claiming it was covered up.Delete
I get it, but who would those investigators have been? Journalists? We've seen how that has gone, and they would have had every expectation that the story would be buried--as it has been for most of the public. Who cares about this? You and me and who else? Well, possibly Barr.Delete
"Well, possibly Barr."Delete
Does this mean that you're hopeful, that Barr is pursuing this aspect?
Contains link to Wolfe’s indictment (pdf) and an article about Ali Watkins, that tells that the FBI accessed her telephone and email records - who she spoke with and their locations - but not the messages themselves.
It also talks about the encryption that Wolfe used on his cell phone.
It sounds as though the FBI had everything but the specific documents he leaked to Watkins and others. They had to deduce that from the articles the reporters published.
Right. That's very easy. The problem is that, while the content may be collected by NSA, there are restrictions on use of that against US persons.Delete
If both parties are following all proper security procedures, end-to-end PGP encryption is UNREADABLE to NSA. They can collect all they want, but with the exception of meta data (To, From, Date, Subject, etc) it's indecipherable alpha-numeric gibberish.Delete
It's entirely too easy for a prosecutor to claim there isn't proof beyond a reasonable doubt when there is proof beyond a reasonable doubt; just as a prosecutor can get an indictment when he knows the accused is innocent.ReplyDelete
James Wolfe got a sweetheart deal because he has so much shit on so many people, he wouldn't be going down all by himself.
Not much different than Hillary saying that if she goes down, she'd take half of Washington, D.C. with her. I have every reason to believe that.
Bingo! I agree.Delete